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#TwitterJokeTrial: a Deconstruction of a Statutory Provision

In this post, I examine a notorious criminal offence, which for many years had lain dormant on the statute books unloved and neglected: section 127(1)(a) of the Communications Act 2003. Perhaps it should be known at the #TwitterJokeTrial provision (after the hashtag used on Twitter for tweets concerning R v. Paul Chambers (unreported)). The Chambers case has certainly made the provision internationally (in)famous. It was used to prosecute Paul successfully for an ill-advised tweet on Twitter that mentioned blowing up Robin Hood Airport.

The provision states:

A person is guilty of an offence if he … sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character.

This is not a trivial offence, as section 127(3) of the Communications Act 2003 states:

A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

Level 5 on the standard scale is currently £5,000 (Section 37 of the Criminal Justice Act 1982, as amended).

Strict Liability?

Statutory interpretation relies on courts taking a statutory provision at face value (the so-called Literal Rule – e.g. R v Harris (1836) 7 C & P 446: defendant’s conviction for offence ‘to stab cut or wound’ following his biting off of his victim’s nose quashed as provision implied an instrument had to be used). It eventually became accepted that courts could divert from a literal approach in circumstances that led to an absurd or repugnant result (the so-called Golden Rule – e.g. Becke v Smith (1836) 2 M&W 195). Only if the court finds there is some ambiguity can it consider what the legislature intended or what mischief or defect in law the provision was intended to remedy (Heydon’s Case [1584] EWHC Exch J36).

On a first read of the #TwitterJokeTrial provision, you might think that sending a message objectively considered to be indecent, obscene or menacing would be a strict liability offence, i.e. where the mere act of committing the offence is enough to render the offender guilty, irrespective of intention. However, there is a House of Lords judgement that in effect requires that an intention (for lawyers, mens rea) to commit the act (the actus reus) is required for a criminal offence. In particular, Lord Reid stated in Sweet v Parsley[1970] AC 132, 148:

Our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.

DPP v Collins

This passage was quoted in what is perhaps the only reported case on the application of section 127(1)(a) of the Communications Act 2003, Director of Public Prosecutions v. Collins[2006] UKHL 40. Incidentally, this seems to have been overlooked by the Crown Prosecution Service, who had considered that section 127(1)(a) was a strict liability offence when first prosecuting Paul Chambers in the #TwitterJokeTrial, and it was on this basis that he first entered a guilty plea. Thankfully the awful implication of this CPS view was spotted early by social media lawyers, particularly David Allen Green of Preiskel & Co, who were able to rectify this gross error and have Paul’s plea re-entered.

Collins applied Sweet v Parsley to find that for a section 127(1)(a) offence:

This passage is relevant here, since Parliament cannot have intended to criminalise the conduct of a person using language which is, for reasons unknown to him, grossly offensive to those to whom it relates, or which may even be thought, however wrongly, to represent a polite or acceptable usage. On the other hand, a culpable state of mind will ordinarily be found where a message is couched in terms showing an intention to insult those to whom the message relates or giving rise to the inference that a risk of doing so must have been recognised by the sender. The same will be true where facts known to the sender of a message about an intended recipient render the message peculiarly offensive to that recipient, or likely to be so, whether or not the message in fact reaches the recipient. (per Lord Bingham, para 11)

Collins was considering the making of offensive messages, but the principles set out above apply equally well to menacing character messages. This was done at the #TwitterJokeTrial, where at the appeal at the Doncaster Crown Court Judge Jacqueline Davies considered that Paul Chambers “was, at the very least, aware that his message was of a menacing character”. In particular, the Judge stated:

We are satisfied, on the evidence, that the message in question is menacing in its content and obviously so. It is difficult to imagine anything more clear. It fits the Oxford English Dictionary definition and the observations of Lord Justice Sedley, to which we have earlier referred. It is, in our judgement, menacing per se.

Although the offence does not require the message to be seen, we take the view that an ordinary person seeing this, and we have no evidence that anyone did, would see it in that way and be alarmed. The airport staff did see it and were sufficiently concerned to report it. As the authorities make it clear, there is no need for anyone to see the message and in any event, different people can have different views.

The required mens rea for this offence is that the person sending the message must have intended the message to be menacing, or be aware that it might be taken to be so.

This Appellant was 26, well-educated and in a responsible job and there is no evidence that he is anything other than of sound mind. We, of course, bear in mind his evidence and the importance of his good character, acknowledging, of course, that good character cannot provide a defence.

We found the Appellant to be an unimpressive witness. We find it impossible to accept that anyone living in this country, in the current climate of terrorist threats, particularly at airports, would not be aware of the consequences of his actions in making such a statement.

Furthermore, we are satisfied that he, as an experienced user of Twitter, made a deliberate decision to post this message on the public timeline of Twitter, on the very day he sent seemingly related private messages to Crazy Colours and within two hours of posting them. We do not accept his evidence that he was unaware of television news and newspaper reports at the material time. His account in interview, as we have observed earlier, was self-serving, although we note that at page 2 of his interview, he uses the expression, when dealing with his Twitter experiences, not to this serious of magnitude.

Accordingly, we are satisfied that the Respondent has proved the necessary mens rea and that the Appellant was, at the very least, aware that his message was of a menacing character.

The Judge makes reference to Lord Justice Sedley. He gave the leading judgement in Collins in the Court of Appeal, and his view was approved by the House of Lords. Sedley LJ considered that the reason for the section 127(1)(a) offence was to protect people from unsolicited messages which they may find seriously objectionable. He noted that the offence is addressed to messages, and said:

This is why it is the message, not its content, which is the basic ingredient of the statutory offence. The same content may be menacing or grossly offensive in one message and innocuous in another. … Here, as elsewhere, context is everything.

…

A menacing message, fairly plainly, is a message which conveys a threat – in other words, which seeks to create a fear in or through the recipient that something unpleasant is going to happen. Here the intended or likely effect on the recipient must ordinarily be a central factor in deciding whether the charge is made out.

…

What is offensive has to be judged (very much as the justices, by considering the reaction of reasonable people, judged it) by the standards of an open and just multiracial society. So too, therefore, what is grossly offensive, an ordinary English phrase with no special legal content, which on first principles (see Brutus v Cozens [1973] AC854) it is for the justices to apply to the facts as they find them. Whether a telephone message falls into this category has to depend not only on its content but on the circumstances in which the message has been sent and, at least as background, on Parliament’s objective in making the sending of certain messages a crime.

The controversy about the #TwitterJokeTrial therefore hinges upon:

(a) what is the proper context of a Twitter message; and

(b) whether the alleged menacing nature of the relevant tweet was properly judged by considering the reaction of reasonable people to it or by the standards of an open and just society?

It is my opinion that Judge Davies has totally failed to address the question of context of the message, in either its content or in relation to the medium by which it was sent. Her judgement fails to show any analysis of context, only an unsupported statement that the message was “menacing per se”.

Secondly, Judge Davies appears to consider that any message that includes any reference to an act of terrorism in any form in respect of any public place would be considered “by anyone living in this country, in the current climate of terrorist threats” to be a menacing message. I consider that this is a massive leap and I would hope and expect that most reasonable people in the UK do not live in such a state of fear that this is the case. The best evidence for this must be that no-one appears to have been in any way menaced by the message at issue. Even the reaction by Robin Hood Airport and the police to investigate the message in a blind following of security procedure is considered by many reasonable people to have been unwarranted by our current open society standards.

By means of a public electronic communications network

The question of the context including the nature of the medium being used to transmit the message is important as section 127(1)(a) includes the phrase “public electronic communications network”. This is defined in the Communications Act 2003 as being an electronic communications network provided wholly or mainly for the purpose of making electronic communications services available to members of the public (s. 151(1)). Electronic communications networks and services are further defined at section 32 of the Communications Act 2003, but the definitions are very broad. It is safe, therefore, to assume that any internet-based or other publicly-available messaging service of any description will generate a message that will be transmitted at some stage by a public electronic communications network, except messages that stay within the bounds of a private network (such as a messaging system or email hosted on a corporate server for use within a corporate network).

This offence therefore catches a much wider set of messages than was ever anticipated or intended by the original drafters of the provision’s predecessors. As described in an earlier post (here), and summarised by Lord Bingham in Collins, the 2003 provision can be traced back to section 10(2) of the Post Office (Amendment) Act 1935, which states:

If any person-

(a) sends any message by telephone which is grossly offensive or of an indecent, obscene, or menacing character; or

(b) sends any message by telephone, or any telegram, which he knows to be false, for the purpose of causing annoyance, inconvenience, or needless anxiety to any other person; or

(c) persistently makes telephone calls without reasonable cause and for any such purposes as aforesaid;

he shall be liable upon summary conviction to a fine not exceeding ten pounds, or to imprisonment for a term not exceeding one month, or to both such fine and imprisonment.

The original “menacing character” therefore addressed the issue of unsolicited real-time messages targeted at particular recipients (to be inferred within sub-section (a) as otherwise the provision would have included telegraph, as it does in sub-section (b)). In no way can Twitter be considered to be such a telephone system. It is much more analogous to a telegraph system, with telegrams potentially available to be read by the public at large.

In any event, no user of Twitter can be said to have intended that any member of the public receive a particular tweet. Any person without a Twitter account is only able to see a random selection of messages on the Twitter home page. The chances of any particular tweet being read by an intended recipient on this home page must be infinitesimally small. Even if an intended recipient was a Twitter user, the mass of messages and the speed with which they appear in the public timeline mean that the chance of a particular message being read in a public timeline is again extremely small, even before the factor that very few users actually read the public timeline is considered. The result is that no sender can sensibly be judged to believe that any undirected message would be seen by an intended recipient.

A Twitter message can be directed by use of an address (@recipientname) or by the less specific use of a tagged message. Within Twitter it is possible to use an octothorpe to identify a subject of interest (a hashtag, eg #TwitterJokeTrial) so that clicking on that hashtag reveals all other messages with the hashtag. It may be reasonable, in the context of a particular message and hashtag, to rule that a sender using a particular hashtag knew or ought reasonably to have known that by doing so the message would be read by an intended recipient.

There is also the question of the meaning of the word “public”. In the history of the section 127 provision “public” meant publicly-owned, as until 1984 the Post Office, then British Telecommunications plc, was in public ownership. Only in the re-enactment of the provision in the Communications Act 2003 did the sense of “public” change to mean publicly-available. As Lord Bingham stated in Collins

The purpose of the legislation which culminates in section 127(1)(a) was to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society.

Hansard

The difficulty with this public electronic communications network contextual analysis is that a court would first have to decide that the outcome of the #TwitterJokeTrial using a literal approach to section 127 led to an absurd or repugnant result. It is an open question whether the High Court will do so. If they do, then the Golden Rule and Mischief Rule may enable them to trace section 127 back to the section 10(2) of the Post Office (Amendment) Act 1935 origins. Given that the High Court is bound by the House of Lords judgement in Collins, it is difficult to see how they could distinguish Twitter from what Lord Bingham considered to be the purpose of section 127(1)(a). It is extremely difficult to see how it can be argued that Twitter is funded by the public for the benefit of the public. It is a free service.

In looking at the mischief intended to be remedied by the 1935 provision under the Mischief Rule, English law does permit the courts to consider certain extrinsic evidence. In particular, the courts can consider the Hansard reports of the debates in Parliament on the relevant provision (Pepper v Hart [1992] UKHL 3]). If they were to do so, they would find that at in the Second Reading in the House of Lords, it is at least implied that the measure was intended to catch direct, real-time, communications where a message had an indecent or menacing character. Here “direct” means that the sender at least intended the message to be received by the intended recipient over the communications system, even though it is clear that it is the sending of the message that is the offence. The provision was originally drafted to give protection to Post Office staff, particularly female telephonists subject to improper or obscene telephone calls. A full explanation may be contained in the House of Commons select committee report (Official Report (Standing Committee B), 5 March 1935; col 14), but this is not available online.

Human Rights and Purposive Interpretation

There is one other point to consider, a sender’s human rights. Under the European Convention of Human Rights, incorporated into English law by the Human Rights Act 1998, a person has a right to freedom of expression:

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

So whilst it is clear the right to free speech can be qualified, it is also a feature of human rights law that any qualifications made under Article 10(2) must be proportionate, both by application of the House of Lords judgement in R v Secretary of State for the Home Department (Ex parte Daly) [2001] UKHL 26 and section 3 (1) of the Human Rights Act 1998:

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

It would therefore be open to the High Court to consider the restrictive interpretation made by the Doncaster Crown Court of section 127(1)(a) disproportionately fettered Paul’s and any other person’s right to freedom of expression via Twitter in the interests of national security or public safety.

Conclusion

There is so much argument here which, if it is was raised in the #TwitterJokeTrial Doncaster Crown Court appeal, has not been reported upon. I continue to hold the opinion that the conviction of Paul Chambers under section 127(1)(a) for what everyone, including the defendant, considers was a stupid tweet, is unsafe. However, I called the appeal incorrectly, and so I cannot be 100% confident that the High Court will agree.

It will be an extremely sad day for English justice, common sense and for freedom of expression in the UK if stupidity by electronic message becomes a criminal offence.